Execution of inmate Robert Roberson in ‘shaken baby’ death is halted after last-minute Texas Supreme Court decision

(CNN) — The scheduled execution of Texas death row inmate Robert Roberson for the murder of his 2-year-old daughter has been suspended after the Texas Supreme Court issued a stay late Thursday night, according to court documents.

The Supreme Court stay came after a splintered Texas Court of Criminal Appeals struck down a lower court’s order halting his execution in a ruling earlier in the evening.

Roberson was scheduled to be put to death by lethal injection Thursday evening, but the Texas Committee on Criminal Jurisprudence voted Wednesday to subpoena him to testify before them on October 21.

Roberson’s conviction relied on allegations that his daughter, Nikki Curtis, died of shaken baby syndrome, a diagnosis his attorneys argue has since been discredited.

A Travis County judge earlier on Thursday granted a Texas House committee’s last-minute temporary restraining order request against the state just 90 minutes before Roberson was scheduled to be executed, and the state appealed the decision, according to Amanda Hernandez, a spokesperson with the Texas Department of Criminal Justice.

The recent updates in the case come amid a remarkable period of legal maneuvers as the state and Roberson’s advocates fought over his fate as his execution loomed. Roberson claims he was wrongfully convicted of killing his daughter more than two decades ago.

In a matter of days, multiple appeals were rejected in state courts, the Texas pardons board rejected his bid for clemency and the US Supreme Court declined to intervene.

That left the House committee’s unusual subpoena and the request for a temporary restraining order that was granted Thursday.

Hernandez confirmed Thursday night — just minutes before the execution process was scheduled to start — that it will not move forward until the restraining order is cleared in the courts.

But in an unsigned opinion from the appeals court that drew a dissent from four judges, the court noted that it usually has the final say in criminal cases involving the death penalty and asserted that the effect of the temporary restraining order that was issued earlier Thursday was to “circumvent our decision, and disobey our mandate.”

The state appeals court vacated the restraining order, effective immediately.

Four dissenting members of the appeals court asked for more study of the legal claims at issue. Perhaps, after hearing more arguments, the court would have reached the same conclusion, they said.

“But given the unprecedented nature of the circumstances present in this case, I believe we should at least explain our reasoning to the Texas Legislature as well as the citizens of Texas,” the dissenting judges wrote.

Following the appeals court’s decision, the committee fighting for Roberson asked the Texas Supreme Court to issue an injunction against the Texas Department of Criminal Justice and Texas Department of Criminal Justice Correctional Institutions Division.

CNN has reached out to the Texas Supreme Court for information on whether a decision will be made Thursday night.

It’s unclear if the issue will be resolved Thursday night. Since the death warrant is only authorized for October 17, a judge will need to set a new execution date if the execution does not happen by midnight, Hernandez said.

While authorities have not confirmed the execution is delayed, Roberson’s attorneys and the committee fighting for him told CNN they believe the execution is currently halted.

The Supreme Court did not explain its reasoning and there were no noted dissents, though Justice Sonia Sotomayor wrote a lengthy statement about the case.

“Few cases more urgently call for such a remedy than one where the accused has made a serious showing of actual in­nocence, as Roberson has here,” Sotomayor wrote. “Yet this court can grant a stay only if Roberson can show a ‘significant possibility of success on the merits’ of a federal claim.”

Given the circumstances, Sotomayor wrote, “a stay permitting examina­tion of Roberson’s credible claims of actual innocence is im­perative; yet this court is unable to grant it.”

Texas on Thursday was scheduled to execute Roberson . But the status of the execution process is unclear after an extraordinary decision by a Texas House committee Wednesday night to subpoena Roberson to testify as it reconsiders the lawfulness of his conviction.

“This extraordinary and unprecedented maneuver reflects how seriously Texas legislators have evaluated the concerns in Mr. Roberson’s case,” Robin Maher, executive director of the Death Penalty Information Center, told CNN of the decision. “They are also sending an urgent, public message to Governor (Greg) Abbott that they, like so many others, do not believe Mr. Roberson should be executed.”

Members of the state House committee went before a Travis County judge shortly before 5 p.m. ET on Thursday to request a temporary restraining order against the Texas Department of Criminal Justice in another last-minute attempt to halt the execution, according to a staff member on the committee.

Former Texas Supreme Court Justice Dale Wainwright represented the committee before the judge.

Roberson arrived at the Huntsville Unit where the execution is set to take place on Thursday afternoon, the criminal justice department confirmed to CNN.

Jennifer Roberson, his sister-in-law, is in Huntsville and feels “angry, heart-broken and furious” over the scheduled execution and repeated rejections of Roberson’s appeals.

“This is an injustice and his blood is on Abbott and Anderson County,” she told CNN. Anderson County is where Roberson was convicted. “This is not a legal execution, this is murder.”

She said Roberson spent time with his wife, who he married in recent years, at the prison Thursday morning before being transported to the Huntsville Unit Thursday afternoon.

His wife, a longtime friend and supporter, and former detective Brian Wharton will be among the witnesses during Thursday night’s scheduled execution, according to Roberson’s sister-in-law.

Roberson met with his spiritual advisor on Thursday afternoon.

If he’s put to death, Roberson’s attorneys say he would be the first person in the US executed for a conviction that relied on an allegation of shaken baby syndrome , a misdiagnosis in Roberson’s case, they argue, and one they say has been discredited.

While child abuse pediatricians fiercely defend the legitimacy of the diagnosis, Roberson’s advocates say the courts have yet to consider ample evidence his daughter, Nikki Curtis, died not of a homicide, but a variety of causes, including an illness and medicine now seen as unfit for such a sickly child.

The pleas of Roberson’s many supporters have so far done nothing to halt the march toward his execution and his conviction has until now been upheld on appeal.

But his attorneys continue to try to make their case in the courts: They’ve filed a request for a stay of execution with the US Supreme Court, arguing his due process rights were violated when the Texas Court of Criminal Appeals declined to consider additional evidence the inmate says would support his innocence claim.

Texas urged the Supreme Court in a filing Wednesday evening to deny Roberson’s emergency appeal, claiming that the arguments he has raised are “unworthy of the court’s attention.”

The courts, Texas officials said, “gave Roberson the means and the opportunity to make claims, marshal evidence in support of his cause, and address the adverse evidence adduced against him.” Just because Roberson was denied, the state officials told the Supreme Court, “does not mean that he was denied notice or an opportunity to be heard.”

“The record shows that the state habeas proceedings adequately complied with due process,” Texas told the Supreme Court in its brief.

Earlier Wednesday, the Texas Board of Pardons and Paroles declined to recommend clemency after his attorneys requested his death sentence be commuted to a lesser penalty – or that the inmate be granted a 180-day reprieve to allow time for his appeals to be argued in court.

Without the recommendation of the parole board, Abbott, the GOP governor, is limited to issuing a one-time, 30-day delay of the execution to allow court appeals to play out. CNN has reached out to Abbott’s office for comment.

Roberson’s innocence claim underscores an inherent risk of capital punishment: A potentially innocent person could be put to death. At least 200 people – including 18 in Texas – have been exonerated since 1973 after being convicted and sentenced to die, according to the Death Penalty Information Center .

‘I am ashamed,’ former detective says

At the time of her death, Nikki had double pneumonia that had progressed to sepsis, they say, and she had been prescribed two medications now seen as inappropriate for children that would have further hindered her ability to breathe. Additionally, the night before Roberson brought her to a Palestine, Texas, emergency room, she had fallen off a bed – and was particularly vulnerable given her illness, Roberson’s attorneys say, pointing to all these factors as explanations for her condition.

Other factors, too, contributed to his conviction, they argue: Doctors treating Nikki “presumed” abuse based on her symptoms and common thinking at the time of her death without exploring her recent medical history, the inmate’s attorneys claim. And his behavior in the emergency room – viewed as uncaring by doctors, nurses and the police, who believed it a sign of his guilt – was actually a manifestation of autism spectrum disorder, which went undiagnosed until 2018.

“I told my wife last week that I’m ashamed. I’m ashamed that I was so focused on finding an offender and convicting someone that I did not see Robert. I did not hear his voice,” Brian Wharton, the former detective who oversaw the investigation into Nikki’s death, told state lawmakers Wednesday at a hearing featuring the case.

“He’s an innocent man, and we are very close to killing him for something he did not do,” said Wharton.

Wharton is perhaps – alongside Roberson’s attorney, Gretchen Sween – the inmate’s most vocal advocate. On Tuesday, the detective turned Methodist pastor learned the inmate had included him on his list of witnesses should the execution proceed.

“There’s a part of me that wants to just run away from that. I don’t want to be there, I don’t want to watch it happen,” Wharton told CNN. “But it is, again, it’s a moment that I owe him. If he’s asked me to be there, I owe him that much.”

State lawmakers lobby for a stay

Wharton is now one of many supporters of Roberson: More than 30 scientists and medical experts who agree with the doctors cited by the inmate’s attorneys, a bipartisan group of more than 80 Texas legislators, autism advocacy groups and author John Grisham have all called for mercy, a fervent movement that mounted strong opposition to the execution in recent days.

Support in the legislature includes members of the Texas Committee on Criminal Jurisprudence, which on Wednesday held a hearing highlighting Roberson’s case, calling Wharton, Sween and others who gave voice to the doubts surrounding the shaken baby syndrome diagnosis.

The hearing was ostensibly about Texas Article 11.073, a state law commonly referred to as the “junk science writ,” which was meant to give defendants a way to challenge their convictions when there was new scientific evidence unavailable at the time of their trial.

The committee voted Wednesday to subpoena Roberson, calling on him in the motion to “provide all relevant testimony and information concerning the committee’s inquiry.” Though the committee is not totally confident that Roberson’s execution will be delayed, they are hopeful, a source with knowledge of the proceedings told CNN.

Last week, the appeals court ordered a new trial for a man sentenced to 35 years in prison for his conviction of injury to a child in a case that also relied on a shaken baby syndrome argument.

Roberson’s supporters believe he, too, should benefit from this law, which “was meant exactly for cases like this one,” the committee said in a letter brief to the Texas Court of Criminal Appeals.

The committee asked for a stay of execution in Roberson’s case while the legislature considered making changes to it in the coming legislative session. But the appeals court denied Roberson’s latest appeal on Wednesday, rejecting it on procedural grounds “without reviewing the merits of the claims raised.”

GOP state Rep. Jeff Leach, a member of the committee, expressed hope the governor and parole board were listening to the hearing, “because the law that the legislature passed and our governor signed into law is being ignored by our courts, and all we’re seeking to do here is to push the pause button to make sure that it’s enforced.”

Diagnosis focus of courtroom debate

Roberson’s attorneys are not disputing babies can and do die from being shaken. But they contend more benign explanations, including illness, can mimic the symptoms of shaking, and those alternative explanations should be ruled out before a medical expert testifies with certainty the cause of death was abuse.

Shaken baby syndrome is accepted as a valid diagnosis by the American Academy of Pediatrics and supported by child abuse pediatricians who spoke with CNN. The condition, first described in the mid-1970s, has for the past 15 or so years been considered a type of “abusive head trauma” – a broader term used to reflect actions other than shaking, like an impact to a child’s head.

Criminal defense lawyers also have oversimplified how doctors diagnose abusive head trauma, child abuse pediatricians say, noting many factors are considered to determine it.

Still, the diagnosis has been the focus of debates in courtrooms across the country. Since 1992, courts in at least 17 states and the US Army have exonerated 32 people convicted in shaken baby syndrome cases, according to the National Registry of Exonerations .

Child abuse pediatricians such as Dr. Antoinette Laskey, chair of the American Academy of Pediatrics’ Council on Child Abuse and Neglect, dispute these statistics. She pointed to a 2021 paper that found just 3% of all convictions in shaken baby syndrome cases between 2008 and 2018 were overturned, and only 1% of them were overturned because of medical evidence. The thoroughness of that study, however, has been called into question .

“I don’t know what to say about the legal controversy,” Laskey told CNN of the courtroom debate (She did not speak to Roberson’s case). “This is real, it affects children, it affects families … I want to help children; I don’t want to diagnose abuse: That’s a bad day.”

CNN’s Ashley R. Williams contributed to this report.

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